Tuesday, March 5th, 2024
A doctor’s negligence can have devastating and life-altering effects on a patient. A slip of the knife, a missed diagnosis, an unreasonable delay in treatment: All of these can lead to catastrophe. Many times, a patient’s only recourse after an encounter with a negligent healthcare provider is the Civil Justice system and a lawsuit to recover those damages caused by that provider with experienced medical malpractice attorneys.
Although a suit for medical malpractice is just a more specific and specialized claim of negligence, Virginia law places a number of guardians at the gates of the courthouse, in an attempt to weed-out all meritless claims against the Commonwealth’s providers of health care. These guardians take the form of statutory and procedural requirements with which a plaintiff must comply, in order to hold attempt to a health care provider liable for negligent actions. Should a litigant make a mistake, the consequences for their case can be dire. This is why you need a medical malpractice law firm that has knowledge in the subject and experienced lawyers for doctor negligence. One such statutory and procedural requirement is the requirement for a certifying expert.
The Requirement for a Certifying Expert in a Medical Malpractice Case
Section 8.01-20.1 of the Code of Virginia applies to personal injury claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
Similarly, Section § 8.01-50.1 of the Code of Virginia applies to wrongful death claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
In other words, if a plaintiff asserts a claim for medical negligence against a health care provider, whether that claim is a claim for personal injury or a claim for wrongful death, that plaintiff must have a qualified expert review the case in advance, and that expert must conclude that the defendant’s health care provider did something wrong which caused the injuries or death at issue. Furthermore, the plaintiff must have obtained a positive review from a qualified expert before serving the lawsuit on the target health care provider. This raises the important question: What is required for a witness to “qualify” as an “expert witness?” The Code of Virginia has a lot to say about this, as well.
The Expert’s Qualifications
Both of these statutes—personal injury and wrongful death malpractice—require the Plaintiff to receive certification from an expert he or she “reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.” Va. Code §§ 8.01-20.1, 50.1.
Va. Code §8.01-581.20(A) states:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
(emphasis added).
In sum, two things are required:
- The certifying expert must have knowledge of the standards applicable to the defendant’s health care area of practice. The various areas of practice in the health care industry are nearly infinite: nursing, in all its various forms; surgery, from orthopedic to neuro; family medicine; OB/GYN. The list is nearly endless. The plaintiff must, however, find the right expert for the case.
- The certifying expert must have had an active clinical practice in the defendant’s specialty or a related field within one year of the defendant’s negligent act or omission.
These two prerequisites for qualification require a potential medical malpractice plaintiff to evaluate their potential expert witnesses. Do they know what they claim to know? Have they had the right education and training? Do they practice the right area of medicine? Is their experience recent enough to qualify under the statute? If the answer is “no” to any of these questions, then the plaintiff must keep looking for the right fit.
The consequences of having no expert witness, or even having the wrong kind of expert witness, can be dire. If the plaintiff fails to have a qualified certifying expert before serving the lawsuit on the defendant, or if the expert that they have certified the case is deficient in some way, it could cost the plaintiff the case. The stakes couldn’t be higher.
Consequences for Failing to Get Proper Certification
Both Va. Code § 8.01-20.1 and § 8.01-50.1 carry with them significant penalties for failing to comply with this expert certification requirement:
If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.
(emphasis added).
The plaintiff’s case truly is on the line. If the plaintiff did not obtain the necessary certification prior to service on the defendant, the court is required (“shall”) to impose sanctions. Pursuant to Va. Code § 8.01-271.1, cross-referenced in the statutes, these sanctions run the gamut from simply reimbursing the defendant for the expenses—including legal fees—incurred in responding to the un-certified Complaint all the way to the dismissal of the case, without permission to refile and re-serve the case, after complying with these statutes. This is truly a worst-case scenario: The injured plaintiff who seeks compensation for healthcare-related injuries loses his or her opportunity to take legal action against the negligent healthcare provider.
Talk to An Attorney
If you have been wrongfully injured by a healthcare provider, this is not a process that you should be expected to deal with alone. The stakes are just too high to attempt to navigate this process by yourself. The requirement of expert certification is just one of many traps for the unwary that lie hidden in Virginia’s medical malpractice law. Experienced medical negligence lawyers who specialize in medical malpractice litigation can walk you through the process and guide you past these guardians of the courthouse gates.
Please contact us or call 866.983.0866. Our initial consultation is always free and confidential. We have a team of experienced Virginia medical malpractice attorneys who would be more than happy to assist you.
Tuesday, February 27th, 2024
Plaintiff personal injury clients are different than other types of clients because their Virginia personal injury case is generally their first interaction with the civil legal system. Clients sometimes have an expectation that the process moves fast. Television shows, like Suits and Law & Order, may be to blame for such an expectation. Unfortunately, this expectation is mistaken—the legal process is quite slow. It can take anywhere from weeks to several years to resolve a Virginia personal injury case. This can be especially difficult for a plaintiff who is the victim of a trucking collision, motor vehicle collision, slip-and-fall accident, defective product, or medical malpractice. These accidents can be life-altering, and plaintiffs not only feel the physical effects but also the emotional and financial effects. Virginia lawyers who understand and care about these effects on their clients tend to move cases to resolution more quickly.
This article is intended to walk you through the basic legal process of a Virginia personal injury case. Generally, a Virginia personal injury case consists of the following steps: (1) hiring counsel, (2) investigation, (3) pleading, (4) discovery, (5) motions, (6) trial, and (7) appeals. Settlement may occur during any of these stages.
Hiring Counsel
If you believe that you have a Virginia personal injury case, and you have not already done so, it is imperative that you immediately contact a Virginia personal injury attorney. At-fault parties and companies often act rapidly in response to an accident. For example, some trucking companies have “rapid response teams” that may arrive at the scene of a crash while first responders are still there. The sooner you contact a Virginia personal injury attorney, the sooner your attorney will be able to help you preserve all potentially relevant evidence to obtain the most amount of compensation possible. A skilled Virginia personal injury lawyer will begin working on your case as fast as possible by proceeding with the investigation phase.
Investigation
Once you have hired a Virginia personal injury lawyer, he or she will begin investigating and collecting the facts and circumstances of the trucking collision, motor vehicle collision, slip-and-fall accident, medical malpractice, product defect, etc. Gentry Locke personal injury lawyers will utilize their team, which consists of an in-house investigator, in-house nurses, paralegals, and legal assistants. The investigation phase often includes determining the potential at-fault parties, researching potential legal claims and the statute of limitations for your lawsuit, sending a preservation letter to the at-fault parties, sending Freedom of Information Act requests to governmental entities, and interviewing potential witnesses. If you have been involved in a motor vehicle or trucking collision, this phase also generally includes inspecting and photographing the scene of the crash and the vehicles involved in the crash. During the investigation phase, your Virginia personal injury lawyer should request, obtain, and review all of your relevant medical records and bills to determine the nature and severity of your accident-related injuries. Your lawyer should also request, obtain, and review all of your relevant employment records if you have missed work or lost wages due to the accident.
Pleading
After the investigation phase is complete, which may be only weeks after hiring counsel, but could take a year or more depending on the specific circumstances of your case, your lawyer will likely file a lawsuit on your behalf. Lawyers use the fancy legal term “pleading” to describe the stage when each side files their initial documents in the lawsuit. The first document filed in a case is called a “complaint,” which is filed by the plaintiff, and it details the facts and legal claims against the defendant. After filing the complaint, the plaintiff’s lawyer will have a time period to serve the complaint on the defendant, which may be up to a year in state court. After service, the defendant will then have 21 days to file a responsive pleading. Responsive pleadings can take many forms, but most often the defendant files what is called an “answer,” which admits or denies the allegations in the complaint and asserts any affirmative defenses. The pleading stage may consist of hearings if the defendant files a responsive pleading asking the case to be dismissed or asking for additional information.
Discovery
“Discovery” denotes the process in which the parties exchange information that may be related to the lawsuit. Discovery occurs during and after the pleading stage. Like responsive pleadings, discovery can take many forms: depositions, interrogatories, requests for the production of documents, requests for admission, inspections, mental or physical examinations, etc.
A deposition is where a potential witness answers questions under oath before a court reporter, who produces a transcript that can be used for certain purposes at trial. Your lawyer will meet with you and prepare you for your deposition, and your lawyer may take depositions of eyewitnesses, law enforcement officers, the defendant, your health care providers, and any experts designated by the defendant. Interrogatories are specific written questions asking the other side to answer such questions in writing and under oath. Requests for the production of documents ask the other side to produce documents that may be potentially relevant to the lawsuit, while requests for admission ask the other side to admit to certain propositions.
The discovery process is aptly named because it is a process whereby parties “discover” much more about the case. Discovery can reveal additional misconduct by the defendant or reveal additional parties that may be at fault. If done correctly, discovery shows the parties the strengths and weaknesses of their positions.
Motions
“Motion” is a broad term that describes a request by a party’s lawyer that the court take some specific action. Motions may be an oral request, but they are often in writing and filed with the court. Motions are filed throughout the litigation process, and they may be filed during the pleading and discovery stages. Motions ask the court to take actions such as: dismiss the case, exclude certain evidence from trial, strike expert testimony, give a party additional time to do something, continue the trial, etc. Contested motions generally result in briefing and a hearing. “Briefing” is a process where both sides research the facts and law and file detailed documents (briefs) with the court that describe why they should win the motion. The court may hold a virtual or in-person hearing to hear oral arguments from the attorneys before making its decision. Once the court reaches its decision on the motion, the court will issue an order that announces the decision.
Trial
Trial is the process that you likely know the most. This is the part of a Virginia personal injury case that you have likely seen on television. This is where the parties, lawyers, and witnesses appear in court so that a judge or jury can decide the case. In Virginia circuit court and in federal court, the parties generally request a jury to decide the case. In Virginia general district court, which is a court for smaller personal injury claims, a judge will decide the case.
A Virginia jury trial generally consists of the following steps: (1) a pre-trial motions hearing, (2) jury selection, (3) opening statements, (4) the plaintiff presents his or her witnesses and evidence, (5) the defendant presents his or her witnesses and evidence, (6) closing arguments, and (7) jury deliberation. During the presentation of evidence, each side will have an opportunity to cross-examine or ask questions of the other side’s witnesses. The trial will end by the judge announcing the verdict and entering an order for the prevailing party. After the trial, the losing party may make post-trial motions to reduce or set aside the jury’s verdict.
Appeals
Appeals commonly occur after a trial has taken place, but generally speaking, they may occur at any point where the court enters a final order disposing of the case. This means that if the court sustains (grants) a motion to dismiss in its entirety, then there may be an appeal before trial. In narrow circumstances, an appeal may occur before the court enters a final order. Either party may appeal a court’s final decision. Sometimes there is an automatic right to appeal to the higher court, and sometimes the higher court has discretion to accept or deny the appeal. It is important to note that except for an appeal from the Virginia General District Court to the Virginia Circuit Court, an appeal does not consist of repeating the initial trial. Appeals are limited to very specific legal issues, such as whether the trial judge incorrectly admitted or excluded certain evidence at trial.
The Virginia appellate process is complicated and it requires specific expertise. If you have a case that you think should be appealed or has been appealed by the other side, contact our Virginia appellate attorneys today.
Settlement
Although Gentry Locke lawyers prepare for trial from day one, the reality of today’s world is that many cases settle before trial. Settlement can occur during any one of the steps outlined above. A case may settle through negotiations between counsel or it may settle through a process called mediation. Settlement negotiations are usually initiated by the plaintiff’s attorney, who will send a demand package containing supporting evidence to the defendant or insurance company. Mediation is where a third-party neutral (a mediator), usually a judge or retired judge, facilitates settlement discussions between the parties. During mediation, the mediator advises both sides of the risks of their positions and assists the parties in reaching a voluntary resolution.
Cases settle for three main reasons: (1) risk, (2) cost, and (3) delay. A jury trial can be risky to both sides, especially given that a random selection of citizens has the power to decide the merits of the case. A jury may award a verdict far in excess of what the defendant expects, but a jury may also find that defendant was not liable (responsible), which leaves the injured plaintiff with nothing. Additionally, jury trials are expensive. In personal injury cases, expert medical testimony is generally required, and doctors can costs hundreds or even thousands of dollars per hour to prepare their reports and give their testimony. Finally, Virginia courts have busy dockets, meaning a jury trial may be scheduled for a year or more after the lawsuit is filed. Defendants frequently try to avoid or delay trial by filing a motion to continue, hoping to wear down the plaintiff to settle. These factors, and others, lead clients to settlement. This is another reason why hiring the right attorney is a crucial decision—our Virginia personal injury attorneys are trial lawyers who can advise you as to the specific risks associated with your case and assess whether negotiation, mediation, or trial is appropriate for your case.
Please note that every case is different and the specific steps of your case may differ depending on the status of your health, and the approach adopted by your Virginia personal injury lawyer. Some cases demand speedy resolution, while other cases may call for a wait-and-see approach, especially if the plaintiff is still treating for their accident-related injuries. Contact Us today so one of our Virginia personal injury attorneys can advise you as to the approach that is suitable for your case.
Tuesday, February 20th, 2024
The long-awaited amendments to Federal Rule of Evidence 702 took effect across federal courts on December 1, 2023. Companies and individuals whose trial and settlement outcomes come down to expert witness testimony should pay close attention to the growing body of caselaw defining the import of these amendments.
Rule 702 provides a key tool for litigants to keep “junk science” out of trial, and imposes on courts an important “gatekeeping” responsibility to exclude any expert opinions that lack sufficiently reliable methodologies. Although “[n]othing in the amendment[s] imposes any new, specific procedures” to the rule, the Advisory Committee’s comments strengthen the rule in a number of ways.
The amendments therefore require litigants to take special care in selecting their expert witnesses and preparing them for trial. They also create more promising opportunities for litigants to challenge baseless or weak expert opinions offered by adversaries.
Rule 702 Amendments “Clarify” and “Emphasize” Courts’ Gatekeeping Responsibilities
With the new amendments, Federal Rule of Evidence 702 now reads as follows (amendments are italicized and underlined):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
As noted in its comments, the Advisory Committee intended for its amendments to “clarify” and “emphasize” courts’ gatekeeping responsibilities under the rule. Consequently, courts have treated the amendments as clarifications or reminders of the standard, rather than changes to it. The United States Court of Appeals for the Fourth Circuit, for instance, cited the amendments before their effective date in reversing a $4.8 million wrongful death verdict obtained in part through unreliable expert witness testimony.[1] Other courts have similarly noted that the admissibility analysis often “remain[s] the same” under the new and previous versions of the rule.[2]
Practice Pointers
Nevertheless, the Advisory Committee’s comments strengthen the rule and bring to light a number of focus areas for parties—both in preparing their own experts, and challenging expert opinions offered by the opposing party.
- Prepare Your Experts for Increased Scrutiny, and Take Advantage of Opportunities to Challenge Questionable Expert Opinions Offered by Adversaries.
The 2023 amendments make clear that proponents of expert testimony have the burden, “by a preponderance of the evidence,” to establish that the testimony satisfies Rule 702 requirements. This standard comes from Federal Rule of Evidence 104(a), and squarely places the threshold assessment of an expert’s factual basis and methodologies with the district court.
In recent years, some courts had taken lax approaches to the rule and punted questions surrounding “shaky” expert opinions to the jury.[3] The 2023 comments explain that Rule 702 does not allow for such approaches: although an expert’s opinion can be admitted notwithstanding relatively insignificant reliability concerns, it is “incorrect” for courts to treat “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as “questions of weight and not admissibility.” Courts must instead address such “critical questions” head on at the admissibility stage, before the expert opinion reaches the jury, and exclude any expert evidence that is not sufficiently reliable.
As a result, litigants seeking to introduce expert witness testimony should prepare their experts for increased scrutiny, including of the expert’s qualifications and methodologies. Conversely, a litigant seeking to exclude an expert’s testimony should fully embrace this standard and, where appliable, note the proponent’s inability to demonstrate the sufficiency of its expert’s qualifications and methodologies by a preponderance of the evidence.
- Ensure Consistency Between the Certainty of Your Own Expert’s Opinions and Known Error Rates of Their Methodologies, and Note Any Mismatches Present in Your Opponent’s Expert Evidence.
The comments expressly warn that “forensic experts” should “avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology [utilized in forming their opinions] is subjective and thus potentially subject to error.” The comments also instruct courts to “(where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results.”
Although focused on forensic experts, the import of this guidance applies to expert methodologies in a wide range of industries—such as forensic fingerprint matching analyses with certain error rates; medical diagnostic methods known to have certain false positive rates; or certain statistical analyses with known confidence intervals. Litigants should ensure a match between their own experts’ methodologies and the degree of certainty with which they offer their opinions, and those lodging expert challenges should highlight mismatches between the two.
- Take Note of Subjectivity Involved in an Expert’s Opinions.
Relatedly, parties should take note of the comments’ indication that “subject[ivity]” can make expert opinions “potentially subject to error.” Expert opinions may involve some level of subjectivity in certain types of cases—for instance, medical experts often must choose between two possible, but conflicting diagnoses; auto accident reconstruction experts must sort between competing theories and possible causes of accidents; and financial and accounting experts often form working assumptions in calculating an individual’s lost income or a company’s lost profits. While some subjectivity can be tolerated under the rule, expert conclusions that involve more subjective than objective factual analysis run the risk of exclusion under the new Rule 702.
- Ensure Your Experts Comply with Basic Principles of the Scientific Method, and Challenge Expert Opinions That Do Not.
The amendments require that the expert’s opinion reflect a reliable application of scientific methods and principles to the facts of the case. These methods and principles often come from industry-specific standard and guidance, such as American Society for Testing and Materials (“ASTM”) standards, and Occupational Safety and Health Administration (“OSHA”) or other workplace health and safety standards.
Importantly, however, Rule 702 also requires compliance with basic principles of the “scientific method”—including assessment of hypotheses through replicable tests and investigation and consideration of all relevant facts (both “good” and “bad”).[4] The Rule 702 amendments provide more opportunities to challenge experts who fail to do so, whether through “cherry pick[ing]” from relevant data or resorting to “result-driven” reasoning.[5] Conversely, parties preparing their experts should put their experts to the test and correct any shortcomings in their investigation and analysis prior to offering their opinions.
Conclusion
Although the December 2023 amendments ostensibly “clarify” what Rule 702 has required of experts all along, parties can expect courts, and each other, to treat expert testimony with increased scrutiny. Litigants should carefully review the amendments and comments as a checklist for ensuring their experts’ opinions are admissible. And those faced with “shaky” expert opinions from opponents should treat the amendments and comments as a playbook for planning their modes of attack.
Gentry Locke lawyers frequently prepare litigation experts for trial and handle admissibility challenges under Rule 702 and its state law counterparts. Call us for more information or assistance in navigating the new amendments.
[1] Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).
[2] E.g., Brown v. Saint-Gobain Performance Plastics Corp., No. 22-cv-018-LM, 2023 U.S. Dist. LEXIS 230628, at *4 n.1 (D.N.H. Dec. 29, 2023).
[3] See, e.g., Hardeman v. Monsanto Co., 997 F.3d 941, 962 (9th Cir. 2021) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)) (finding no error in trial court’s “slight deference” to experts with “borderline opinions” on the ground that “[t]he interests of justice favor leaving difficult issues in the hands of the jury” and relying on the trial process to “attack shaky but admissible evidence”).
[4] In Re Lipitor (Atorvastatin Calcium) Mktg. v. Pfizer, Inc., 892 F.3d 624, 634, (4th Cir. 2018) (noting that courts “consistently” exclude expert opinions formed through “result-driven analysis, or cherry picking” of data because “such an approach does not reflect scientific knowledge, is not derived by the scientific method, and is not good science”) (internal citations and quotations omitted).
[5] See n. 4. Although the 2023 Advisory Committee comments do not specifically address the scientific method, the emphasis of courts’ gatekeeping responsibilities will likely result in an increased focus on this topic at the admissibility stage. The comments note that “[j]udicial gatekeeping is essential because . . . jurors may . . . lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”
Wednesday, February 14th, 2024
Published with the permission of the Virginia State Bar. Originally published in the Virginia Lawyer, Vol. 67/No. 3.
The Supreme Court of Virginia has approved a pilot program for limited appellate mediation in the Court of Appeals of Virginia and Supreme Court of Virginia beginning January 1, 2019. The Court’s announcement recognizes the importance of expanding the availability of alternative dispute resolution to all levels of Virginia’s court system.
The pilot program will run for two years. It is designed to support mediation in Virginia’s appellate courts so litigants may make informed decisions about resolution of their disputes and fashion creative solutions, even after entry of a final or appealable order.
Appellate mediation will be available in certain civil cases where both parties are represented by counsel. Appeals where one or both parties are pro se are not eligible for appellate mediation through the pilot program. In the Court of Appeals, mediation will be available in equitable distribution and/or related attorney fee disputes. In the Supreme Court, mediation will be available only where a petition for appeal has been granted; motions to vacate criminal convictions and petitions for actual innocence are not be eligible for appellate mediation.
How appellate mediation will work
Appellate mediation is entirely voluntary. In the Supreme Court of Virginia, the parties will be informed of the availability of appellate mediation when a writ is granted. At that time, the clerk of the Supreme Court will send a letter to the parties describing mediation and explaining that if all parties agree to mediation and notify the clerk in writing of their agreement within 14 days, any further appellate deadlines (except the statutorily-required bond deadline) will be stayed for a period of 30 days to allow the parties an opportunity to mediate. The clerk’s letter will attach a list of certified appellate mediators but will explain that the parties may choose any mediator, whether or not the mediator is on the list.
In the Court of Appeals, appellate mediation is not available until the Court receives the record in a domestic relations case. At that time, the clerk of the Court of Appeals will send the parties a letter similar to that sent by the Supreme Court clerk. As in the Supreme Court, if the parties agree to mediate, there will be an automatic stay of the proceedings for 30 days to provide an opportunity to mediate. If the Court of Appeals issues a stay, the clerk will notify the parties of the deadline for filing the next document.
Appellate mediation will promote access to justice
Chief Justice Donald W. Lemons initiated the study of mediation in the appellate courts last year when he asked the Joint Alternative Dispute Resolution Committee to appoint a group to consider the issue. The Joint ADR Committee appointed the Special Committee to Study Appellate Mediation, which includes members of the appellate bench, appellate litigators from the Virginia Bar Association and VSB, and members of the Joint ADR Committee.
Following months of study, the special committee issued a report in June 2018, recommending that the Supreme Court and Court of Appeals undertake the pilot program. According to the special committee’s report, appellate mediation is “a vehicle” to provide “viable appellate mediation for economically disadvantaged litigants” in an effort to promote access to justice at the appellate level of the commonwealth’s court system.
Training and certification of appellate mediators
The special committee also recommended that the Judicial Council of Virginia approve specific training and certification for appellate mediators during the pilot projects. To date, there is no special training in Virginia for mediators regarding the unique aspects of appeals in Virginia’s courts. The special committee hopes to close this gap by offering a new two-hour course focusing exclusively on appellate litigation in Virginia. This course will be required for individuals (except those who have served on the Supreme Court and Court of Appeals) who seek to be certified as appellate mediators.
To become a certified appellate mediator in Virginia, one must be certified as a mediator in Virginia or complete the 20-hour basic mediation course. The special committee has also recommended additional minimum qualifications for certification of appellate mediators in each appellate court to ensure that mediators have the skills necessary to effectively mediate disputes at the appellate level.
The Joint ADR Committee is holding a training program for interested appellate mediators on November 14-16, 2018, in Richmond. For information about the training course, go to the events section of the VSB website. The report of the special committee can be found at: https://cdn.ymaws.com/www.vba.org/resource/resmgr/adr/report-special_cmte_to_study.pdf.
Monday, February 12th, 2024
I. Introduction and Executive Summary
On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023). But, to the extent there is a “legal” Richter scale, that earthquake has yet to register. Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights. But that context has left under-appreciated the dramatic change that occurred to Virginia law, and the potential implications.
The upshot is that Virginia is likely now the most protective state for religious liberty and expression, protecting it more strongly than any other constitutional right. To do so, Virginia will now apply a “super” strict scrutiny to any burdens on religious practice, in what will be a novel framework.
Under this heightened test, the state cannot justify burdening religious expression or practices based on any legitimate or even compelling state interest. Virginia state and local governments may burden religious expression or practice (even if not the aim of the law or policy) only if it is for the purpose of public safety. And, that burdening law or policy must be narrowly tailored to advance that narrow public-safety objective. Otherwise, a religious accommodation or exception must be made, even for generally applicable laws.
This article is not aimed at evaluating the merits of the Vlaming decision. Instead, we address what its implications may be for Virginia law—and Virginia citizens, businesses, and organizations—going forward. Among those implications, described in more detail below:
1.) The strong protection of religious liberty in Vlaming may influence how the Virginia Human Rights Act’s religious discrimination protections are interpreted, creating even more demands on employers than exist under federal law. It is not hard to see—as the Vlaming case itself demonstrates—how an employer’s legal requirement to prevent sex or gender-based discrimination could conflict with its obligations to other employees to accommodate their religious beliefs regarding, for instance, use of preferred pronouns.
2.) More laws and policies will be subject to challenge or a defense based on religious objection than ever before, and with uncertain outcomes. The Vlaming decision throws into question whether Virginia may soon have to recognize plural marriage, excuse certain religiously based practices from criminal prosecution, or how zoning and environmental laws may apply to businesses or organizations claiming a religious objection or burden. If the standard is as strict as Vlaming indicates, governments may have a hard time defending against such religiously based claims or defenses.
3.) By departing from federal precedent on religious liberty protections and embracing a more protective interpretation under the Virginia Constitution, Virginia may find itself in intractable conflict with federal law. There could no doubt be tensions (as the Vlaming case demonstrates) between protecting religious practices and protecting against other types of discrimination, including based on sex, sexual orientation, or gender identity. The Vlaming decision offers few options for entities trying to navigate those tensions that may run headlong into what, for instance, the U.S. Department of Education may contend is required under Title IX to protect LGBTQ students from discrimination.
Because of these significant legal implications, among others, all must consider how the Vlaming decision will impact them.
For citizens, businesses, and other organizations, Vlaming may provide additional protections that should not be ignored. Today, you have a much stronger constitutional right to religious liberty than you had on December 13, 2023—so use it in appropriate cases.
For employers, get ready for these religious-discrimination issues to be front and center in your HR compliance discussions and decisions.
For state and local governments, be prepared to defend even long-standing laws, ordinances, permitting decisions, etc. against challenges or defenses based on religious beliefs and practices.
The change in Virginia law signaled by Vlaming opens an entirely new chapter of rights-based litigation in Virginia, with almost all of it yet to be written. The decision is important, and it’s here to stay for the foreseeable future—and, given the recent trends at the U.S. Supreme Court, may presage a major change coming in U.S. Constitutional law before too long.
II. The Decision Itself
First, what did the Court actually decide in Vlaming?
A. The Alleged Facts
The School Board moved to dismiss Mr. Vlaming’s lawsuit. This is important because the trial court decided the case without hearing any evidence. Under well-settled legal standards, the Supreme Court of Virginia was required to assume that the factual allegations in Mr. Vlaming’s Complaint were true.
According to his complaint, Peter Vlaming was a public high school French teacher, employed by the West Point School Board. During the end of the 2017-2018 school year, Mr. Vlaming became aware that a student he had previously taught and who was biologically female, intended to transition to a male identity and wished to be referred to using male pronouns. Mr. Vlaming alleged that, for him, “this request asked him to violate his conscience. He holds religious and philosophical convictions that reject the idea that ‘gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans’ and instead accept as verity that ‘sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.’” Vlaming v. West Point School Board, No. 211061, slip. op. at 2-3 (Va. Dec. 14, 2023) (quoting Mr. Vlaming’s complaint) (hereinafter, the “Decision”).[1] Mr. Vlaming further alleged that his conscience and religious practice “‘prohibits him from intentionally lying, and he sincerely believes that referring to a female as a male by using an objectively male pronoun is telling a lie.”’ Id. at 3 (quoting Mr. Vlaming’s complaint).
Mr. Vlaming alleged that the student, referred to as “John Doe” in the litigation, enrolled in Mr. Vlaming’s French II class for the 2018-2019 schoolyear. To avoid issues, Mr. Vlaming asked all the students to pick new French-language names to be used in the class. He then would use Doe’s chosen French name, and limit use of any pronouns in class discussions. This seemed to Mr. Vlaming to accommodate Doe while maintaining his religious belief and practice. Id. at 2-3.
Mr. Vlaming alleged that the student—Doe—seemed comfortable with his approach, but that when he explained his reasons (his religious beliefs) to Doe’s parents, they complained to school administration. This led to escalating conflict with the school’s principal, who insisted that Mr. Vlaming use the student’s preferred pronouns or face discipline.
Mr. Vlaming alleges that during one class, when it appeared that Doe was at risk of injury during a class exercise, Mr. Vlaming inadvertently referred to Doe as “her” rather than “him,” for which he later apologized. Doe withdrew from the class that day. Id. at 5. Mr. Vlaming reported the incident to a school administrator. Mr. Vlaming was placed on administrative leave pending an official review, and ultimately—after refusing to use Doe’s preferred masculine pronoun due to his religious beliefs—Doe was fired by the West Point School Board for violating its policies against discrimination and harassment based on gender identity. Id. at 6.
Mr. Vlaming filed suit asserting free-exercise, free-speech, due-process, and breach-of-contract claims exclusively under Virginia law, including the Virginia Constitution. The trial court dismissed the case on purely legal grounds, finding that Mr. Vlaming had not stated valid legal claims under Virginia law. Mr. Vlaming appealed.
B. The Majority Opinion
The heart of the Vlaming decision is the Court’s interpretation of Article I, § 16 of the Virginia Constitution, which is Virginia’s enshrinement of religious liberty in its constitution. The Decision has three opinions—the majority opinion (Justice Kelsey, joined by Justices McCullough, Chafin, and Russell); a concurring opinion (Justice Powell, joined by Chief Justice Goodwyn); and a dissenting and concurring opinion (Justice Mann, joined in part by Justice Powell and Chief Justice Goodwyn). But all of the Justices agreed that Mr. Vlaming had validly pled a case for violation of Article I, § 16—based on his allegations—but would use very different tests for evaluating the case on the merits.
Free Exercise of Religion Claim
The Court begins by plainly declaring that the Decision interprets the scope of the Virginia Constitution, not the First Amendment of the U.S. Constitution. This furthers the development of Virginia’s own constitutional law which is informed, but not necessarily coterminous with the U.S. Constitution. Decision at 8-9.
Indeed, the text of Article I, § 16 is markedly different from the much shorter Free Exercise Clause of the First Amendment.[2] Because of this difference, the Majority held that federal authorities on the Free Exercise Clause could “inform but do not necessarily govern the construction” of Article I, § 16. Decision at 11.
Indeed, the Decision criticized sharply the controlling U.S. Supreme Court precedent on the scope of the Free Exercise Clause, Employment Division v. Smith, 494 U.S. 872, 878-79 (1990). See Decision at 11. Understanding that case helps explain how Vlaming departs from it.[3]
In Smith, Justice Scalia wrote for a 5-4 majority holding that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that this law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879 (quotation omitted). There, the petitioners had been denied unemployment benefits because they were fired for violating Oregon’s criminal prohibition against use of peyote. The petitioners claimed—and it was undisputed—that their religious beliefs required sacramental use of peyote, and so claimed that the Free Exercise Clause prohibited Oregon from penalizing them for abiding by their religious beliefs. Id. at 874-75. The Court found that strict scrutiny did not apply in the case because the criminal law was religiously neutral and of general applicability. Id. at 878-80.
Thus, if Virginia law applied Smith, Mr. Vlaming likely would have no legal cause of action, as the West Point School Board was enforcing a neutral and generally applicable policy for all teachers. But the Decision explicitly departs from Smith, stating that “[i]n our opinion, the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” Decision at 13 (citing recent federal precedent questioning but abiding by Smith) (emphasis added).
The Decision then applies a doctrinally originalist approach to interpret Article I, § 16, looking first to the text, historical developments, and the original intent of the framers of the 1776 Virginia Constitution. Decision at 13-20. Based on that, the Court concludes that Article I, § 16 explicitly does contemplate religious exemption from generally applicable laws, and that such exemption applies unless there is some heightened societal interest. The question, then, is what types of state interests can justify the burden on religious freedom.
Filling in some gaps based on Jefferson’s Virginia Statute for Religious Freedom and other founding-father writings on the subject, the Court embraces a broadly protective view of religious liberty under the Virginia Constitution. The Court concludes that, in the Vlaming case, the question for his free exercise claim is:
[W]hether Vlaming’s sincerely held religious beliefs caused him to commit overt acts that invariably posed some substantial threat to public safety, peace or order . . . and if so, whether the government’s compelling state interest in protecting the public from that threat, when examined under the rigors of strict scrutiny, could be satisfied by less restrictive means.
Decision at 23 (quotations omitted).
The Court declined to go into detail to extrapolate what this limitation means in terms of other hypothetical applications. But the Court did make clear that the limitation of “public safety, peace or order” had teeth, creating an even stricter test from what typically applies in applying judicial scrutiny. See Decision at 20.
Applying that rule, the Court concluded that Mr. Vlaming had alleged a valid claim, and therefore the court would proceed to a trial on the merits – to apply the new test under Article I, § 16.
Free Speech Claims
The Decision also broke notable ground in applying Virginia’s free-speech protections, under Article 1, § 12 of the Virginia Constitution.[4] The Court concluded that Mr. Vlaming had alleged a valid compelled-speech claim. He alleged that the use of preferred pronouns was not related to his curricular topic, French, and argued that it was simply a “compelled-speech mandate seeking to use him as an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Decision at 55 (quotation omitted).
The Court found that speech regarding gender identity received the highest protection under Article I, § 12 because it involved ideological disagreement about which the state cannot compel speech without ample justification. Id. at 56. It distinguished “official-duty” or “government-speech” exceptions (which allow the government to punish employees for unapproved speech) because, here, it involved forcing Mr. Vlaming to express ideological views with which he disagreed. Id. at 58-60.
C. The Concurring and Dissenting Opinions
As noted above, both the concurring and dissenting opinions in Vlaming would have held that Mr. Vlaming pled a valid free-exercise claim under the Virginia Constitution.
The concurrence noted that it would apply a traditional strict scrutiny test—such that the state could justify a burden on religious practice if it could show any “compelling state interest.” Decision at 74. The dissenting opinion took a very different view that would have applied a more Smith-like approach to free exercise claims under the Virginia Constitution, but thought the allegations were sufficient to raise issues as to whether the policies were neutral on religion. Id. at 80.
The opinions are worthy of review; however, this article focuses on the practical impact of the majority decision.
III. Legal Implications
So what does this all mean?
Vlaming Decision is Not Just for Government Lawyers – It Will Impact Private Organizations and Businesses
Constitutional rights are generally enforceable against the Government, not private actors. But this decision will affect private actors as well.
First, private businesses or organizations may well consider whether the new protections under Vlaming allow them to be exempt from certain disfavored requirements. It appears clear that, while religious beliefs are personal, organizations also are protected and can have religious beliefs or practices. See, e.g. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (holding that corporations can exercise religion). Thus, and as suggested further below, there could be opportunities to use the expansion of religious liberty protections in Virginia to the benefit of multiple private persons (from individuals to corporations).
Second, it is likely Vlaming will influence interpretation of the Virginia Human Rights Act (VHRA) and how employers must accommodate religious beliefs and practice.
Under the VHRA, it is unlawful for a business to discriminate, either in employment or public accommodation, based on an individual’s “race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, military status, disability, or national origin.” Va. Code § 2.2-3905(B)(1) (banning employment discrimination); see also 2.2-3904(B) (similar protected classes for public accommodation).
As you may recall, Virginia enacted the Virginia Values Act in July 2020. This law provided new remedies and claims that did not previously exist under Virginia law.[5] Because these laws are relatively new, the reality is that there is little settled law or jurisprudence in the Virginia state courts interpreting the VHRA.
Vlaming’s expansive view of religious practice—including performance of work duties according to the dictates of religious conscience—begs whether that same understanding applies in the VHRA context? While the history and text of Article I, § 16 and the VHRA are quite different, there will no doubt be litigation to define whether there is a practical difference in discrimination based on religion (under VHRA) and burdening religious practice (under the Virginia Constitution).
If the same interpretation applies, private businesses may find themselves between a rock and a hard place in complying with state and federal anti-discrimination laws. If, for instance, a conflict arises between an employee’s desire to be referred to by certain pronouns and another employee’s refusal to do so based on sincerely held religious beliefs, what is an employer to do? If some informal resolution is not possible, the employer could conceivably face liability under the VHRA no matter what it does.
Moreover, the broad nature of the religious-rights protection provided under the Virginia Constitution may influence how the VHRA is applied. Bear in mind that in the summer of 2023, the U.S. Supreme Court modified the test regarding when an employer could deny an employee’s request for a reasonable religious accommodation, making it more difficult for an employer to deny such a request. See Groff v. DeJoy, 143 S. Ct. 2279 (2023) (to deny request for religious accommodation under Title VII, employer must show burden of granting request would result in “substantial increased costs” in relation to the “conduct of its particular business.”)[6] But it remains the case that, under federal law, businesses do not have an inflexible obligation to accommodate religiously based practices. Given Vlaming’s strong requirement that governments yield to religious practices unless there is a narrow, compelling interest, Virginia courts may be persuaded that, under the VHRA, employers also must provide more robust protection for religiously based practices and beliefs.
More Laws and Government Actions are Subject to Religious Objection Now than Before
Immediate implications also come on the operation of general state and local laws, regulations, and ordinances. Under Vlaming , it is now a potential defense to any enforcement of those laws that they burden religious belief and practice. That can mean any criminal law, any civil regulation, or even a zoning ordinance—really any government action taken.
Here are just a few hypotheticals for consideration:
- If, like in Smith, a defendant claims that use of heroin is necessitated by religious practice, can the defendant be legally prosecuted in Virginia or denied certain benefits due to violating the criminal law?
- If a person’s religious faith requires plural marriage, must Virginia law recognize the marriages?
- If a person’s religion requires ritualistic sacrifice of animals, can that be prosecuted as animal cruelty?
- If the state is considering a major infrastructure project and the areas affected by it are worshiped by some as sacred, can the state proceed? Does it matter if public safety is the justification for the project? Or if the state is approving a private project versus building it, itself?
- If a religiously affiliated school wants to use property in a non-conforming use under the zoning code, can the locality deny the special use permit on grounds other than public safety?
- If a person’s religion forbids support of government social welfare programs, can they be forced to pay Virginia taxes in support of them?
Under Smith, those and other hypotheticals were settled, and the answer was clear: religious belief or practice would not impact how religiously neutral, general laws apply. Under Vlaming, the door is swung open in Virginia, and these and similar issues may well need to be decided under the new “super” strict scrutiny test.
Vlaming’s “Super” Strict Scrutiny will be Difficult to Satisfy
One facet of Vlaming that garnered strong disagreement from the concurring and dissenting justices is its narrowing of the types of justifications that can pass judicial scrutiny. The state must show both that its interest is in protecting against some threat to public safety and that it is narrowly tailored to meet that objective. By erecting a “super” strict scrutiny standard, Vlaming makes it difficult for the government to overcome a valid religious objection by a particular individual or organization.
First, what is necessary for public safety, and how is that to be measured? Are health and environmental laws necessary for public safety? Taxation laws? Educational laws? Zoning ordinances? Noise ordinances? Consumer protection laws? Anti-discrimination laws? Property laws? Domestic relations laws?
Second, how are the courts to assess whether something is narrowly tailored when the object is “public safety”? For instance, is public safety implicated by exempting a handful of adherents to use sacramental-heroin? What evidence would the government need to show that its broad, general prohibition could not allow for some exception without impacting public safety?
Thus, cases where there are religious objections will no doubt put state and local government attorneys to the test. This, in itself, may force governments to think long and hard before picking an enforcement fight with someone claiming a burden on religious belief or practice.
Virginia May Find Itself in Intractable Conflict with Federal Law
By extending the right to free exercise of religion under the Virginia Constitution beyond the First Amendment’s bounds, the Vlaming decision may also create imbalance with federal laws.
For instance, much funding for Virginia schools, transportation, other infrastructure, and health care comes from the federal government. The vast majority of that funding is not through federally-mandated laws, in which federal law would preempt Virginia law, but through Congress’s general spending power, which states abide by consensually in order to obtain the federal largesse. The underlying facts of Vlaming itself provide a not unlikely example of how an intractable conflict might arise.
Suppose the federal Department of Education determines that the School Board in Vlaming needs to maintain its policy in order to comply with Title IX, which requires certain non-discrimination standards for the receipt of federal funding. But the School Board cannot, under Vlaming, agree to enforce the policy without violating Mr. Vlaming’s rights under the Virginia Constitution. And, moreover, because mere compliance with federal law is not a valid basis under Vlaming to burden religious practice in Virginia, the School Board would be unable to comply with federal law. And that could jeopardize federal funding.
Other examples could also arise, particularly if the federal government is willing to push states to adhere to its standards—under the Medicaid program, in building federally-funded transportation projects, and so on.
The potential conflict with federal law could also impact not just government entities, but also private employers. As another example, it is now settled law under Title VII that discrimination “because of sex” encompasses claims of discrimination based on a person’s “sexual orientation or gender identity.” Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). This past fall, the Equal Employment Opportunity Commission (“EEOC”) published proposed Enforcement Guidance on Harassment in the Workplace. In its guidance, the EEOC cites cases for the proposition that the alleged failure by a supervisor to use an employee’s preferred name or pronoun is a form of sexual harassment that could subject the employer to liability under Title VII.[7] What is an employer in Virginia to do when a supervisor refuses to refer to an employee by a preferred pronoun on religious grounds, and the employee contends this constitutes sexual harassment under Title VII or the VHRA? And what if, under Virginia law and as informed by Vlaming, the employer has different obligations with respect to religious accommodation?
Religious Beliefs and Practices will Need to be Litigated
A further implication of Vlaming will be the need for Virginia courts to adjudicate whether a litigant sincerely holds the allegedly burdened religious beliefs and practices—and even whether they are religious beliefs and practices in the first place.
While all can hope that only the most sincerely-held beliefs will form the basis of any legal defense based on the free exercise of religion, it is not hard to imagine that creative litigants may attempt to fashion any number of things into a religious practice dictated by conscience. Those issues would likely be incapable of resolution except through litigation.
The U.S. Supreme Court, in the Hobby Lobby decision, reiterated that “it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’” whether the belief “reflects ‘an honest conviction”’ held. Hobby Lobby, 573 U.S. at 725 (quoting Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707, 716 (1981)). But litigating that question, because of the prevailing Free-Exercise standard under Smith, was rarely necessary because many cases could be handled at the pleading stage. But under Vlaming, the credibility of the religious claim by the litigant will become more closely scrutinized, and this issue will be fodder for discovery and trial.
Recently, the EEOC, driven in large part due to religious objections to COVID-19 vaccine requirements by employers, issued updated guidance that suggested employers should generally accept the sincerity of employees’ claimed religious beliefs.[8] Indeed, inconsistent practices or newly adopted beliefs are not necessarily disqualifying, nor is there any requirement that the religious belief be held by a traditionally recognized religion—or even by anyone else at all. This guidance may well become persuasive authority for Virginia courts, though the question remains unclear under the VHRA or for free-exercise claims under the Virginia Constitution.
IV. Conclusion
Vlaming is the law in Virginia for the foreseeable future. Because it is of constitutional dimension and interpreting the Virginia and not U.S. Constitution, it will not be modified unless there is (1) a decisional change by the Supreme Court of Virginia, or (2) a constitutional amendment.
As discussed above, for citizens, businesses, organizations, and government entities, this decision has significant implications.
Fundamentally, the Supreme Court of Virginia established a super strong and protective right for religious belief and practice—in a way largely untested in Virginia—and so it opens a new chapter for Virginia rights-based litigation.
For employers, look closely at your policies for handling religious accommodation requests and make sure they are updated (this is also true as a result the U.S. Supreme Court’s decision in Groff). Having updated written procedures whereby an employee documents a particular religious-based request will be important to evaluate requests and to protect against potential claims of religious-based discrimination.
Businesses, organizations, and individuals should also consider whether there are opportunities to use Vlaming to their advantage. Few may want to go out and test the waters themselves, but a big tool to limit government authority in Virginia has been provided—it is worth considering how to use it to best advantage.
For state and local government entities, get ready for this issue to be at your doorstep soon. Consider now your process for religious-accommodation requests.
Finally, Vlaming may indicate a Supreme Court of Virginia that is less deferential to the elected branches and embracing a more active role in deciding cases with policy implications. Vlaming is a bold decision that pulls no punches. The ideological split on the Court is exposed in this decision, and there could be more 4-3(ish) decisions ahead on other issues implicating the Virginia Constitution. And if the decision signals a larger willingness to wade into the culture wars, the Court may find itself as counter-weight to the elected branches that are becoming more liberal politically. That is not a role the Supreme Court of Virginia has typically played, but is one it may find itself in, in applying the Vlaming test to numerous laws and policies by state and local governments.
Those cases are on the way, no doubt.
[1] The exact pagination of the case in the Southeast Reporter was not available at the time of publication; therefore, citations to the case are to the slip opinion available here.
[2] Compare:
| Va. Const. art. I, § 16 |
U.S. Const., amend. I |
| That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please. |
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(Free Exercise Clause in bold). |
[3] As the Decision points out, Smith was an incredibly controversial decision, prompting rebuke from Left and Right, at the time, and leading to the Religious Freedom Restoration Act. Decision at 11-12.
[4] The focus of this article is on the implications of the free-exercise part of the Decision. While the free-speech analysis is also important to the case, it will likely not have as broad an impact since “free speech” is generally only applied as against government actors and not private businesses or organizations. As explained below, there are more implications where religious practice is involved given the protections of various antidiscrimination laws against religious-based discrimination.
[5] See https://www.gentrylocke.com/article/virginia-values-act-poses-significant-legal-risks-to-virginia-employers/.
[6] An interesting case to watch is Kluge v. Brownsburg Community School Corporation, a case in Federal Court in Indiana with similar factual allegations as the Vlaming case. The Seventh Circuit has sent the case back to the Southern District Court in Indiana to evaluate following the new test announced by the Court in Groff.
[7] See FN 33 of proposed Guidance.
[8] See What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, EEOC (Updated May 15, 2023), available at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov). (Answer to Question L.2. provides guidance on evaluating whether a particularly belief qualifies as a sincerely held religious belief).
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Friday, February 9th, 2024
On February 8, 2024, a unanimous United States Supreme Court ruled that whistleblowers bringing a retaliatory discharge claim under the Sarbanes-Oxley Act (“SOX”) are not required to prove that the employer acted with “retaliatory intent,” but need only prove that their “protected activity” was a “contributing factor” in the employer’s unfavorable personnel action. The ruling reversed a Second Circuit decision which had overturned a $900,000 jury verdict in favor of a former employee against UBS Securities, LLC.[1] The Court’s ruling is yet another disappointment for businesses hoping for greater judicial protection from the growing number of retaliation claims.[2]
Justice Sotomayor’s opinion for the Court noted two related reasons for the ruling. First, the statute, 18 U.S.C §1514A, does not reference or include a “retaliatory intent” or “animus” requirement. Instead, when Congress drafted SOX, it said no employer “may discharge, demote, … or in any other manner discriminate against an employee … because of” the employee’s protected whistleblowing activity. The Court noted that to “discriminate” typically means simply “to make a difference in treatment or favor of one as compared with others.” [3] Accordingly, the Second Circuit was wrong to conclude the word “discriminate” requires a plaintiff to prove the presence of a malevolent motive or “animus” on the part of the employer/decisionmaker.
Second, the Supreme Court observed that the statutory language[4] calls for the employer intent to be proved using the contributory factor burden-shifting framework used in most federal whistleblower protection laws.[5] The Court found that the “contributory factor” framework was specifically chosen by Congress in order that the protection provided would be plaintiff-friendly so that employees would not have to show that their protected activity was a “significant”, “motivating’, “substantial”. or “predominant” factor in making the adverse decision in this context.[6]
As Justice Alito noted in his concurring opinion, the Court’s decision still requires the plaintiff to prove that the employer treated him/her worse “because of” the protected activity, which involves an intentional act; however, the plaintiff need not prove the protected activity was the only reason, or even that it was the principal reason for the adverse decision. A showing that the protected activity “helped to cause or bring about” the decision is enough.
Once the employee comes forward with direct or circumstantial evidence that the protected activity helped to cause the adverse decision, the intent requirement is met and the burden then shifts to the employer to “demonstrate, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of the protected behavior.” This burden shifting framework is meant to be plaintiff-friendly because discriminatory intent is often difficult to prove and the employer controls most of the relevant evidence. As Justice Alito noted, this framework in effect requires the employer to show that the employee’s protected activity did not cause the challenged employment decision.
The upshot is that retaliatory discharge claims will have even stronger staying power. In Murray, this meant a $2.7 million swing for the employer (between damages and attorney’s fees awarded to the plaintiff). Plaintiffs will surely like their chances at trial better with the more friendly standard adopted in Murray.
For more information about claims involving potential whistleblowers, please contact the lawyers at Gentry Locke who are frequently engaged to conduct internal investigations, to respond to government inquiries, to advise and represent management regarding employment decisions, and to represent companies and individual whistleblowers in litigation.
[1] See Murray v. UBS Securities LLC, 43 F.4th 254, 258 (2d Cir. 2022), rev’d Murray v. UBS Securities, LLC, 601 U.S. ___ (2024). The Supreme Court also noted that the district court had also awarded $1.769 million to Murray for attorney’s fees and costs through trial, before the additional fees and expenses associated with the appeals to the Second Circuit and U.S. Supreme Court
[2] Whistleblower claims are nothing new. https://www.gentrylocke.com/article/a-strange-new-normal-the-pandemic-and-a-new-virginia-law-usher-in-the-decade-of-the-whistleblower/ ; https://www.gentrylocke.com/whistleblowers-in-the-workplace-the-new-world-order/
[3] Quoting Bostock v Clayton County, 590 U.S. 644, 663 (2020). In Bostock, the Court made it clear that in a claim of employment discrimination under Title VII a lack of “animosity” is “irrelevant” to proving the existence of discrimination.
[4] SOX, 18 U.S.C. §1514A(b)(2)(C) requires the court to apply the legal burdens of proof set forth in 49 U.S.C.§42121(b).
[5] This burden-shifting framework originated in the Whistleblower Protection Act of 1989, 5 U.S.C.§1221(e), and has since been used in more than ten (10) federal statutes enacted to protect employees who may face retaliation for reporting unlawful conduct that impacts public health, safety, or welfare in various industries.
[6] It bears noting that under Title VII, a plaintiff must show that the protected activity was a motivating or substantial factor in the adverse action. EEOC v Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 772-73 (2015).
Thursday, February 8th, 2024
As of July 1, 2020, Virginia became one of twelve (12) states that imposed a ban on the use of non-compete agreements for “low wage employees.”[1] At the time of adoption, the salary threshold for a “low wage employee” was $59,124 annually (or $1,137 per week). This salary threshold was not fixed by statute, but instead, the General Assembly adopted a moving target definition that ties the “low wage” salary threshold to the “average weekly wage of the Commonwealth” as determined by the Virginia Employment Commission. The practical effect is that a new average weekly wage is calculated before or at the beginning of each year when, inevitably, the average weekly wage goes up.
On January 16, 2024, more than three-years after the General Assembly adopted the restriction, the Virginia Department of Labor & Industry (“DOLI”) announced that the average weekly wage for the next twelve (12) months had risen to $73,320 annually, or $1,410 per week.[2] An annual salary of $73,320 is not a salary historically perceived as a “low” wage.[3] Accordingly, the time is now for employers to audit existing employment agreements that were entered into on or after July 1, 2020, to determine whether any of those agreements contain a provision that “restrains, prohibits or otherwise restricts an individual’s ability, following termination of employment, to compete with his former employer.”[4]
It is likely that many employers who entered into employment agreements within the past 3.5 years brushed aside the non-compete restriction for “low wage” employees because those newly hired employees were paid $70,000 per year or more—a salary which, by all accounts, is not “low.” With the latest increase to $73,320, these employers will find that the ban now applies because they suddenly have “low wage” employees. Those employers who do not want to (or cannot) raise these employees’ salaries to $73,325 or more, or do not want to (or cannot) commit to giving another pay raise each year to keep pace with the Virginia Employment Commission’s “average weekly wage,” should think twice before including a non-compete provision in their employment agreements.
As something of a silver lining, unlike similar laws in other states, the Virginia law does not require an employer in this situation to notify affected employees that a noncompete provision in the employee’s employment contract is now unenforceable or void. Also, it is important to remember that agreements entered into before July 1, 2020, are not subject to this ban.[5] Accordingly, as long as a “grandfathered” restrictive covenant is otherwise “reasonable” in geography, time and scope, a court is likely to enforce the restriction against an employee—even as to a lower wage employee who earns far less than $73,320.[6]
Going forward, however, an employer planning to hire a new employee who will be paid below $73,320 must avoid any requirement that the employee sign a “covenant not to compete” without getting legal advice on how to draft the agreement—which will require careful nuance. Moreover, if an employee quits or is separated from employment, employers should have any 2020 or “newer” agreement reviewed before a manager or owner threatens a current or former employee with enforcement of a “covenant not to compete.” Virginia gives workers the right to file suit to invalidate such a covenant in the agreement, and if they prevail, the worker is entitled to be paid liquidated damages as well as lost wages, benefits, and attorney’s fees. In addition, the Commonwealth can impose a civil monetary penalty of up to $10,000 per violation.
There is one final reminder to all employers who use covenants not to compete. While employers do not have to send a notice to individual employees that their noncompete agreement is void or unenforceable, Virginia law does require employers to make and maintain a general posting of either a copy of the Virginia Code § 40.1-28.7:8 (the Code section memorializing the non-compete ban for “low wage” employees), or an approved summary of that Code section provided by DOLI. This post must be kept alongside other required federal and state employment law postings.
If you have questions regarding employment agreements, noncompete or non-solicitation provisions, or other restrictive covenants designed to prevent competition or the protection of confidential information and intellectual property, please contact a member of Gentry Locke’s Employment Team.
[1] Va. Code § 40.1-28.7:8.
[2] See Virginia Department of Labor and Industry, Notice of the Average Weekly Wage for 2024, available at https://www.doli.virginia.gov/2024/01/16/notice-of-the-average-weekly-wage-for-2024/. This is up $3,484 from 2023, when the average weekly wage was $69,836 annually (or $1,343 per week).
[3] Statistics from the U.S. Bureau of Labor Statistics (“BLS”) show that the average mean wage in all occupations in Virginia in 2023 was $65,960. See https://www.bls.gov/oes/current/oes_va.htm/#00-0000. It follows that there are a lot of employees making less than $73,320.
[4] While noncompete provisions are less common in contracts with independent contractors, Virginia’s law also applies to independent contractors. The threshold for an independent contractor is the average weekly wage but is the “median hourly wage” for the Commonwealth of Virginia for all occupations as reported for the prior year by the BLS. At the present time, that median hourly wage for Virginia for 2023 was $23.22 per hour. See https://www.bls.gov/oes/current/oes_va.htm#00-0000.
[5] Virginia law may not be the only legal standard that applies. As noted below in ftn. 6, and in an earlier article, last January, the Federal Trade Commission (“FTC”) began the process required to adopt regulations that would invalidate nearly all noncompete agreements. As of this time, the FTC has no further action to move these regulations forward, and it is questionable whether any new rules will be rolled out before the November election. Even if the FTC does issue the new regulation, those new rules will almost certainly be challenged in court, potentially enjoining its implementation and enforcement.
[6] While Virginia law may find a “grandfathered” agreement enforceable, an employer might face a legal challenge to enforcement under another federal law. On May 31, 2023, the General Counsel to the National Labor Relations Board (“NLRB”) issued a memo stating that her office intended to challenge the enforceability of non-compete restrictions required of non-supervisory employees and argued that non-compete provisions unlawfully interfere with employees’ protected rights under Section 7 of the National Labor Relations Act, which extend to non-union employers. In September 2023, the Cincinnati Regional Office of the NLRB filed a complaint against an employer who required its employees to sign an agreement that contained a non-compete as well as customer and employee non-solicitation provisions that applied for two years. The General Counsel’s legal position has been roundly criticized as an unprecedented overreach, but it is unclear how or when the NLRB might resolve this case. Once the NLRB decides the case, the General Counsel’s position will ultimately be decided by a federal court.
Wednesday, January 31st, 2024
Navigating how to bring a personal injury claim in Virginia can be very confusing without experienced medical malpractice attorneys. Adding to that confusion, bringing a lawsuit for an injury caused by medical negligence, or medical malpractice, by a healthcare provider, adds additional complexities. Some requirements are so important that failure to comply with them can derail a lawsuit before it even begins. One such requirement is that you must bring your lawsuit within the time allowed under Virginia law, or it will be forever barred. This is known as a statute of limitations.
The General Rule
What is a statute of limitations? A statute of limitations is a defined period of time within which you must file a lawsuit after you suffer an injury. This limitation period is expressed in the Code of Virginia.
Why does it matter what statute of limitations applies to your potential lawsuit against a healthcare provider? Well, if you don’t bring a lawsuit within the time that the code requires, you can be permanently barred from ever bringing it. It is heartbreaking as a lawyer when you get a call from a potential client who has suffered real malpractice, but it occurred so long ago that any lawsuit would be barred by the statute of limitations.
In Virginia, the statute of limitations for bringing a personal injury lawsuit, which includes a lawsuit against a healthcare provider for medical negligence (medical malpractice), is two (2) years. This limitation period is set out in Va. Code § 8.01-243(A), which states: “[U]nless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.”
Similarly, a medical negligence claim that results in a death, also known as a wrongful death action, has a statute of limitations of two (2) years from the date of the person’s death. This is also established by Virginia law in Va. Code § 8.04-244.
Importantly, the clock starts running on your time to bring a lawsuit at the time the “cause of action accrues.” This is a fancy way of saying that in most cases, your countdown starts from the time the negligence (malpractice) occurs. Generally, this accrual is the moment when the malpractice first occurred (for a personal injury action) or from the date of the person’s death (in a wrongful death action). Virginia, unlike some states, does not have a general rule that allows an injured party to wait until their injury is discovered before staring the countdown clock.
The (limited) Exceptions that Prove the Rule
Despite this, Virginia does have certain instances where the time to file your claim, the statute of limitations, is extended. Some of those ways are as established by statute in Va. Code § 8.01-243. Additionally, there are other doctrines/rules that have been established by the Virginia Courts that can potentially extend the amount of time you have to bring a lawsuit. Examples of where the statute of limitations for medical malpractice can be extended under Virginia law include:
- If the malpractice occurs when the patient was a minor.
It is very important that you note that this applies only to medical negligence (malpractice) claims and not other types of personal injuries for a minor (e.g., injuries suffered in a motor vehicle collision). For example, if a minor is under the age of 8, they have until the age of 10 to bring the action (by and through their “next friend,” which is a topic outside the scope of this article). Code § 8.01-243.1.
- If a foreign object “having no therapeutic of diagnostic effect” is left in the body.
Examples that our firm have seen that fall under this exception include a surgeon leaving a surgical sponge in a patient’s body following a procedure and a surgeon leaving an instrument inside of the body. If this occurs, a person has one (1) year from the date the foreign object was found, or should have been found, to bring a lawsuit. Va. Code § 8.01-243(C)(1).
- In cases where “fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the two-year period.”
For example, fraud or concealment can include a healthcare provider who hides the malpractice from you, or altered your medical record, and it was impossible for you to discover it until you sought additional treatment. (This will tie into another extension that will be discussed later). Again, if this occurs, the person has one (1) year to bring a lawsuit after the injury is discovered, or should have been discovered. Va. Code § 8.01-243(C)(2).
- In instances where cancer is not timely and properly diagnosed.
The law states that where a healthcare provider failed to diagnose “a malignant tumor, cancer, or an intracranial, intraspinal, or spinal scwannoma…” the statute of limitations is one year from the date the cancer is discovered, or should have been discovered. Code § 8.01-243(C)(3).
As mentioned earlier, there is at least one other way in which the time to bring your medical malpractice lawsuit can be extended, this is known as the “continuing treatment rule.” Unlike the other ways mentioned in this article, this rule is not set out in any Virginia code book, but was established by the Supreme Court of Virginia more than forty (40) years ago in Farley v. Goode, 219, Va. 969 (1979). In Farley, The Supreme Court of Virginia held, essentially, “[w]hen malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment…the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates.” In other words, if the treatment is with the same physician, for the same condition, and the treatment is “continuous and substantially uninterrupted,” then the statute of limitations can be extended.
However, people need to also be aware that there is a statute of repose that applies to all medical negligence (malpractice) suits in Virginia. Even if the malpractice falls under one of the covered areas or doctrines, it may be forever barred if you do not file suit within ten (10) years from the date of the malpractice. Va. Code § 8.01-243(C)(3).
As you can see, it is essential that you speak with one of our personal injury lawyers in Roanoke, Virginia who understands all of the potential pitfalls, traps, and nuances related to filing and litigating a medical malpractice claim. Failure to understand personal injury law in Virginia and appreciate one of these nuances can be disastrous for your potential claim and could leave you forever barred from the courthouse.
Contact us to speak with a Virginia personal injury lawyer.
Monday, January 29th, 2024
Despite a set schedule, appellate briefing is not necessarily closed prior to decision. Even after oral argument, a party may submit “supplemental authorities” by letter to the clerk. This letter is not limited to just citing the new authority—argument is ok too.
The rules for submitting supplemental authority are similar across the Court of Appeals of Virginia, the Supreme Court of Virginia, and the Fourth Circuit. The “authority” cited must be “pertinent and significant.” Temporally, it should “come to a party’s attention” (i) after the party’s petition/brief was filed or (ii) after oral argument, but before decision; the letter must then be filed “promptly. It needs to also explain why the authority is being submitted—including by reference “to the page of the brief or to a point argued orally.” And the body of the letter is limited to 350 words. See Va. Sup. Ct. Rule 5:6A; Va. Sup. Ct. Rule 5A:4A; FRAP 28(j).
The opposing party has the right to respond. This response is subject to the same substantive limitations, and must be submitted within 14 days (in the Court of Appeals of Virginia) or “promptly” (in the Supreme Court of Virginia or the Fourth Circuit).
While these are the basic rules, what factors bear on whether a party should submit a supplemental authority letter? Sometimes the decision is easy—i.e., if there is a new controlling case. Often, however, it will be a judgment call. To assist in exercising that judgment, here are a few considerations:
1. Does the material qualify as supplemental authority?
Under the rules, three words (each subject to interpretation) control this threshold inquiry: “authority,” “pertinent,” and “significant.” In general, “authority” should be limited to legal authorities, not material that would supplement the evidentiary appellate record. See 21 Moore’s Federal Practice – Civil § 328.60 (with limited exception, “authorities” are things like “statutes, cases, [and] regulations”).
“Pertinent” relates to the requirement to reference where the issue was previously discussed. In other words, a supplemental authority letter is not a vehicle to introduce additional arguments. See United States v. Ashford, 718 F. 3d 377, 381 (4th Cir. 2013) (finding that litigants may not use such a letter “as a means to advance new arguments couched as supplemental authorities”); Va. Sup. Ct. Rule 5:6A (the Supreme Court of Virginia “may refuse to consider the supplemental authorities if they unfairly expand the scope of the arguments on brief”); Va. Sup. Ct. Rule 5A:4A (same for the Court of Appeals of Virginia).
As for “significant,” one rule-of-thumb is whether a party would have cited the authority in the relevant filing, had it been aware of the authority at the time.
2. What about timing?
By rule, the supplemental authority should only have “come to a party’s attention” after the party’s last substantive filing or oral argument. While this is not strictly pegged to when the authority was available, litigants are expected to be aware of pre-existing relevant authorities. The letter accordingly should explain any disconnect or delay. See Va. Sup. Ct. Rule 5:6A (supplemental authorities may be rejected if they “raise matters that should have been previously briefed [or], appear to be untimely”); Va. Sup. Ct. Rule 5A:4A (same).
Letters must also be filed “promptly.” Key here is to avoid the appearance of gamesmanship and to give adequate time for consideration—both by the court and your opponent. Of course, if a decision is pending and the material is helpful, the supplemental authority should be filed as soon as possible.
Although the rules appear to allow reference at oral argument without first submitting a supplemental authority letter, that would not be good practice (and the supplemental authority may be rejected on the spot). Rather, a letter should be submitted in advance of a hearing.
3. Can you include argument?
“Argument” used to be expressly forbidden. In 2002, however, Rule 28(j) of the Federal Rules of Appellate Procedure was amended to remove this prohibition, and now “permits parties to decide for themselves what they wish to say about supplemental authorities.” FRAP 28, Committee Notes on Rules—2002 Amendment. The Virginia Rules were adopted in 2015 and likewise contain no restriction on argument.
4. What will your opponent likely say?
A supplemental authority letter can be a great opportunity: litigants have 350 words to introduce new authority and argue its significance to the appeal. But any evaluation of whether to submit such letter must game-out what your opponent will likely say in response. Just like an opening letter, a response can both highlight aspects of the authority and present related argument.
There is only an opening letter and response—no reply is permitted. This sequencing is important in assessing whether a letter will be a net positive. Appellate Lawyers, in particular, may be loath to give their opponents a platform to have the “last word.”
Thursday, January 25th, 2024
Earlier this month, the Department of Labor (DOL) issued a new final rule intended to be effective March 11, 2024 that will address when a worker can be properly classified as an independent contractor. The misclassification of workers has been an issue of concern for several years, especially for worker-right advocates, which led to new legislation being passed in Virginia and many other states.[1] On the other hand, many business groups, especially those which rely heavily on independent contractors, such as those in the trucking and construction industry, and others in the gig-economy, are concerned that the new regulations unfairly tilt the analysis against those who prefer to be treated as independent contractors. This article will provide background on the issue and an analysis of the DOL’s new independent contractor rule.[2]
Background
The Fair Labor Standards Act (FLSA) provides certain protection for workers classified as employees. This protection includes a guaranteed minimum wage for all hours worked, overtime pay at least one and one-half times the employee’s regular rate of pay for hours worked over 40 within a single workweek, and mandates employers to maintain certain employee records. Independent contractors, on the other hand, are not afforded these protections under the FLSA.
Interestingly, guidance for distinguishing an employee from an independent contractor is not within the text of the FLSA. Until 2021, the DOL had not issued regulations that established specific criteria for determining a worker’s status under the FLSA. Instead, the criteria for worker classification were developed through case law and informal guidance from the DOL, like Fact Sheet 13, and both concentrated on the “economic reality” of the relationship between the company and the worker using the following six non-exhaustive factors:
- Worker’s opportunity for profit or loss depending on managerial skill;
- Investments by the worker and potential employer;
- Degree of permanence of the work relationship;
- Nature and degree of control;
- Extent to which the work performed is an integral part of the potential employer’s business; and
- Skill and initiative to perform the work.
While the DOL and most federal circuit courts used this “economic reality” test,[3] there was inconsistency in the application of the relevant factors, leaving companies with a lack of clarity when determining a worker’s status. There was no single bright-line test.
In an effort to promote greater certainty and simplicity, the DOL during the Trump Administration adopted a formal independent contractor rule, which was published on January 7, 2021 (2021 IC Rule). The 2021 IC Rule utilized a five factor test to determine whether a worker is an employee or independent contractor; however, unlike the traditional “economic reality” test, the 2021 IC Rule designated two of the five factors as “core factors.”[4] The DOL explained that these two “core factors” were typically more probative in determining the status of a worker and, thus, should carry greater weight than the other factors. For this reason, if the two “core factors” pointed toward the same classification, then the worker should be classified that way. If the two “core factors” pointed in different directions, then the three “non-core factors” should be considered to determine a worker’s classification. The 2021 IC Rule made clear, however, that it was highly unlikely that the “non-core factors” could outweigh the probative value of the two “core factors.”
The DOL’s New Independent Contractor Rule
After the Biden Administration took office two weeks later, the DOL changed course and set its sights on rescinding the 2021 IC Rule due to a belief that the 2021 IC Rule would cause confusion and complicate the analysis because the 2021 IC Rule conflicted with decades of case law applying the six factor “economic reality” test. The DOL reasoned that no factor or combination of factors should be emphasized over others, nor afforded predetermined weight. This dispute resulted in litigation, and the eventual decision for the DOL to issue a new rule that seeks to bring a return to the totality of the circumstances approach of the “economic reality” test historically applied. In doing so, the DOL declined to embrace the three pronged “ABC test” created by the California Assembly Bill 5 enacted in 2019.
In the newly released final rule, the DOL elected to provide additional detail concerning how each of the six underlying factors should be applied. The six factors and some of the specific guidance related to each of those factors is set forth below.
- Opportunity for Profit or Loss Depending on Managerial Skill.
This factor focuses on whether the worker has opportunities for profit or loss based on managerial skill (including initiative or business acumen or judgment) that affect the worker’s economic success or failure in performing the work. The following non-exclusive list of facts are suggested as being relevant when applying this factor:
- whether the worker determines or can meaningfully negotiate the charge or pay for the work provided;
- whether the worker accepts or declines jobs or chooses the order and/or time in which the jobs are performed;
- whether the worker engages in marketing, advertising, or other efforts to expand their business or secure more work; and
- whether the worker makes decisions to hire others, purchase materials and equipment, and/or rent space.
If a worker has no opportunity for a profit or loss, then this factor suggests that the worker is an employee. The DOL went on to observe that some decisions a worker makes that impacts their pay typically will not indicate the exercise of managerial skill necessary for independent contractor status. For example, a decision to work more hours or take more jobs when that worker is paid at a fixed hourly rate or fixed rate per job would not be exercising the managerial skill required by this factor, because, they are simply earning more by working more. By contrast, managerial skill is involved when the worker has the ability to accept or decline certain jobs where the jobs vary in their degree of possible profitability and the worker is responsible for determining which jobs to pursue and how the worker’s resources and time should be allocated amongst the various jobs they elect to pursue.
- Investments by the Worker and the Potential Employer.
The second factor considers whether investments by a worker are capital or entrepreneurial in nature. The types of investments that will be viewed as capital or entrepreneurial investments under this factor are those investments which “generally support an independent business and serve a business-like function, such as increasing the worker’s ability to do different types of or more work, reducing costs, or extending market reach.” In contrast, expenditures made that are more akin to costs borne by a worker to perform a job, such as the costs for tools and equipment necessary for the job, and costs unilaterally imposed by an employer on a worker, would not be viewed as a capital or entrepreneurial investment.
In response to criticism of the proposed rule, the new final rule makes clear that the DOL will not compare the amount of a worker’s investments to the amount of the potential employer’s investments. Rather, the DOL will compare the nature of the worker’s investments to the potential employer’s investments to determine whether the worker is making similar types of investments as the potential employer (even if the investments are smaller) that indicate the worker is operating independently, thereby signaling independent contractor status.
- Degree of Permanence of the Work Relationship
The third factor considers the duration, continuity, and exclusivity of the relationship. When the relationship is indefinite in duration, continuous, or exclusive of work for other employers, the factor weighs in favor of the worker being an employee. When the relationship is definite in duration, non-exclusive, project based or sporadic due to the worker being in business for themselves and marketing their labor or services to multiple entities, the factor weighs in favor of the worker being an independent contractor.
- Nature and Degree of Control
The fourth factor considers the potential for employer’s control, including reserved control, over the performance of the work and economic aspects of the working relationship. Facts relevant to this consideration include whether the potential employer sets the worker’s schedule, supervises the performance of the work, uses technological means to supervise the performance of the work, reserves the right to supervise and/or discipline workers (even if not used), or limits the worker’s ability to work for others. The potential employer’s ability to control prices or rates for services and the marketing of the services or products provided by the worker will also be considered indicators of an employment relationship.
On the other hand, the DOL in the final rule recognized that certain actions taken by a potential employer to ensure compliance with specific laws and regulations do not indicate employer control. However, actions taken by the potential employer that go beyond compliance with specific laws or regulations and that serve the potential employer’s own compliance methods, safety, quality control, or contractual or customer service standards may be indicative of control.
- Extent to Which the Work is an Integral Part of the Company’s Business.
The next factor considers whether the work performed by a worker is an integral part of the potential employer’s business. The focus of this factor is whether the potential employer could function without the service performed by the workers. When the work performed is critical, necessary, or central to the potential employer’s principal business, then this factor weighs in favor of the worker being an employee.
- Skill and Initiative.
The sixth favor considers whether the worker uses specialized skills to perform the work and whether those skills contribute to a business-like initiative. When a worker depends on potential employer training or does not use specialized skills, then this factor weighs in favor of the worker being an employee. The DOL also notes that just because a worker brings specialized skills to the job, this fact alone does not make a worker an independent contractor, as some employees have specialized skills.
- Additional Factors
The new rule specifically states that the foregoing six factors are not exhaustive, and the DOL suggests that there may be additional factors relevant in determining whether the worker is an employee or independent contractor for purposes of the FLSA, but mentions none specifically.
Conclusion and Takeaways
At the outset, it is important to note that the new rule only impacts the analysis of whether a worker is an employee or independent contractor under the FLSA. It has no impact whatsoever on state wage and hour laws, like the California ABC test, the National Labor Relations Act (NLRA), Internal Revenue Code or any other federal or state laws under which independent contractor status may be assessed. That being said, once it takes effect the new rule will significantly impact all employers who utilize independent contractors in terms of its dealings with the DOL.
As of March 11, 2024, the DOL will treat the new rule as the controlling standard for determining worker classifications under the FLSA, unless or until a court rules otherwise. While there continues to be a great deal of uncertainty about the fate of the new rule, employers would be well-served to familiarize themselves with the new rule, should consider an audit or privileged review of current independent contractor relationships and seek legal advice from an experienced attorney on compliance issues. Reclassifying workers from independent contractors to employees must be handled carefully. Moreover, the costs associated with the misclassification can be quite significant, especially if it involves a large group of workers.
If you have any questions or need assistance in assessing certain members of your workforce or independent contractor arrangements to determine proper worker classifications, or if you need assistance with a DOL audit or compliance review, please contact the members of the Gentry Locke Labor & Employment team.
[1] As of July 1, 2020, Virginia adopted a very pro-employee statute, which includes a presumption that workers are to be considered an employee unless the employer can prove they are an independent contractor using the 21 factor IRS test. Va. Code §40.1-28.7:7. This law also creates a private right of action by an individual who believes they have been misclassified, in addition to series of penalties for misclassifications. See Va. Code §58.1-1901. Interestingly, since its enactment, this statute has not yet resulted in a flood of litigation as originally feared.
[2] There are several lawsuits currently pending that seek to block implementation of the new DOL independent contractor rule. It is uncertain at this time whether the new misclassification rule will become effective on March 11, 2024.
[3] Federal courts with jurisdiction over Virginia have historically applied the six factor test. See Hall v DIRECTTV, LLC, 846 F.3d 757,774 (4th Cir. 2017).
[4] The two “core factors” are the worker’s opportunity for profit or loss and the nature and degree of control. The other three “non-core factors” are the skill required for the work, whether work is part of an integrated unit of production, and the degree of permanence of the work relationship.
